Daily Insurance: Friday, 4 March 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Victoria v Tatts Group Ltd (HCA) - contract - Tatts not entitled to terminal payment from State under agreement - State’s appeal allowed
Tabcorp Holdings Ltd v Victoria (HCA) - statutory interpretation - Tabcorp not entitled to terminal payment provided for in s4.3.12(1) Gambling Regulation Act 2003 (Vic) - appeal dismissed
Lee v Elgammal (NSWCA) - professional negligence - primary judge erred in concluding client suffered any loss or damage due to solicitor’s advice - appeal allowed
Norris v Routley (NSWSC) - costs - continuation of proceedings in Court unwarranted - no order for costs even though plaintiff successful - plaintiff to pay indemnity costs to defendant - plaintiff to pay defendant’s costs unnecessarily incurred for abandoned claim
ANZ v Loftus (VSC) - mortgage - fraud - bank could enforce judgment debt against mortgagor - mortgage was valid - bank’s security interest not defeasible for fraud
Galbally & O’Bryan Lawyers (a firm) v Awadallah (VSC) - solicitors’ costs - review of costs - no error in decision of Associate judge - appeal dismissed

Dear Subscriber

1. This Benchmark Television broadcast is with Erik Young on applications to remove liquidators in discussion with Terry Sperber.

2. Discussion includes – power to remove liquidators – liquidator’s approaches to their tasks – seeking advice from the court – adversarial methods of recovery – what is evidence of ownership of vehicles?

3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.

4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.

5. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.

6. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.

7. You should watch on Wi-Fi to avoid excess data usage charges.

Warm regards
Alan Conolly for Benchmark

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Benchmark Television
Click here to watch the video
 
Barrister Erik Young on Applications to Remove Liquidators with Terry Sperber
Discussion includes – power to remove liquidators – liquidators' approaches to their tasks – seeking advice from the court – adversarial methods of recovery – what is evidence of ownership of vehicles?
Summaries With Link (Five Minute Read)
Victoria v Tatts Group Ltd [2016] HCA 5
High Court of Australia
French CJ; Kiefel, Bell, Keane & Gordon JJ
Contract - appeal concerning parties’ entry into agreement in 1995 after privatisation of TAB - agreement provided for terminal payment to be made to respondent (Tatts) "[i]f the Gaming Operator's Licence expires without a new gaming operator's licence having issued to [Tatts]" - whether Tatts entitled to payment under clause of agreement due to State’s allocation of gaming machine entitlements under Gambling Regulation Act 2003 (Vic) - meaning of "new gaming operator's licence" in clause of agreement - held: "new gaming operator's licence" meant a gaming operator's licence granted under Pt 3 Gaming Machine Control Act 1991 (Vic) - a "new gaming operator's licence" was never issued - respondent not entitled to payment under clause of agreement - appeal allowed.
Victoria
Tabcorp Holdings Ltd v Victoria [2016] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Keane & Gordon JJ
Statutory interpretation - appellant (Tabcorp) claimed entitlement to terminal payment under s4.3.12(1) Gambling Regulation Act 2003 (Vic) - Tabcorp contended allocation of gambling machine entitlements was "grant of new licences" under of s4.3.12(1) as the entitlements were "substantially similar" to Tabcorp’s licences - meaning of "grant of new licences" in s4.3.12(1) - statutory construction - held: "grant of new licences" meant “grant of wagering licence and gaming licence” issued under Pt 3 of Ch 4 Gambling Regulation Act 2003 (Vic) - Tabcorp not entitled to terminal payment - appeal dismissed.
Tabcorp
Lee v Elgammal [2016] NSWCA 26
Court of Appeal of New South Wales
Gleeson JA; Tobias & Emmett JJA
Professional negligence - evidence - appeal concerning whether appellant solicitor liable to respondent client for liability client incurred under guarantee he gave in bank’s favour for loan made by bank to customer - client had retained solicitor to advise him on liabilities and obligations under guarantee and contended solicitor failed to advise him properly - solicitor admitted breach of retainer and negligence but disputed client suffered loss - primary judge gave judgment in client’s favour - whether client would have signed guarantee if liability limited to certain amount - whether bank would not have released term deposit if provided with guarantee with client’s liability limited - held: primary judge erred in concluding client suffered any loss or damage due to solicitor’s advice - appeal allowed.
Lee
Norris v Routley [2016] NSWSC 147
Supreme Court of New South Wales
Harrison J
Costs - offer of compromise - Court gave judgment for plaintiff in proceedings against defendant - plaintiff contended she should have costs in accordance with general rule - defendant contended plaintiff not entitled to costs as she failed to demonstrate “commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted” - defendant also contended he should have costs of response to claim for lost income abandoned by plaintiff on hearing’s second day, and was also entitled to indemnity costs due to plaintiff’s rejection of offer of compromise - r42.34 Uniform Civil Procedure Rules 2005 (NSW) - held: continuation of proceedings in Court not warranted - no order made in respect of costs even though plaintiff succeeded - plaintiff required to pay defendant’s costs expended on abandoned claim - plaintiff obtained judgment no more favourable than terms of offer - defendant entitled to costs on indemnity basis.
Norris
ANZ v Loftus [2016] VSC 58
Supreme Court of Victoria
Cameron J
Mortgage - fraud - defendant was registered proprietor of property - defendant defaulted on repayment pursuant to loan agreement with plaintiff bank - bank sought possession of property alleging that defendant agreed to grant registered mortgage over property as security - defendant contended he never signed mortgage, that signature was forged and bank’s mortgage security was defeasible - Associate judge found in favour of bank and ordered payment of judgment debt - whether mortgage procured by fraud - whether bank could enforce judgment debt over property in reliance on mortgage - ss42, 76 & 78.Transfer of Land Act 1958 (Vic) - held: bank could enforce judgment debt - mortgage was valid - bank’s security interest not defeasible for fraud - judgment for bank.
ANZ
Galbally & O’Bryan Lawyers (a firm) v Awadallah [2016] VSC 68
Supreme Court of Victoria
Cameron J
Solicitors’ costs - respondent was former client of applicant law firm - applicant represented respondent in negligence proceedings against former solicitors - respondent refused to pay applicant’s costs, contending applicant overcharged him and was negligent - Associate judge upheld certain objections in relation to bill of costs - amount was taxed off bill - respondent’s appeal dismissed pending reconsideration of Associate judge’s earlier decision - Associate judge ordered payment of amount of $51,177.87 - respondent appealed - held: no error in Associate judge’s decision - appeal dismissed.
Galbally
Poem for Friday (Recitation here by Thomas Hellier)
Not for That City
BY CHARLOTTE MEW

Not for that city of the level sun,
Its golden streets and glittering gates ablaze—
The shadeless, sleepless city of white days,
White nights, or nights and days that are as one—
We weary, when all is said , all thought, all done.
We strain our eyes beyond this dusk to see
What, from the threshold of eternity
We shall step into. No, I think we shun
The splendour of that everlasting glare,
The clamour of that never-ending song.
And if for anything we greatly long,
It is for some remote and quiet stair
Which winds to silence and a space for sleep
Too sound for waking and for dreams too deep.

BY CHARLOTTE MEW